You *Still* Can't Touch This: Copyright Law, Hip-Hop and Tech Comm

Christian deMaagd

Perhaps unfortunately, the field of tech comm has few, if any, well-known examples of what happens to those who don’t pay attention to copyright issues. One of the most interesting areas in which to explore the perils of copyright violation is in the world of American hip-hop music. I will explore the similarities between the copyright issues faced by hip-hop artists, and those faced by technical communicators.

Introduction

The craft of technical communications (“tech comm”) often occurs under a deadline. One of the job requirements for technical communicators working in the corporate sphere is the ability to write large amounts of text and/or code quickly and efficiently. Of course, what this means in practice is that in the process of doing our work we may wind up inadvertently ignoring some of the basic issues that confront every working writer. One such issue is that of copyright law.

Technical communicators differ from journalists in that while the latter have a new story to write about virtually every day, the former write essentially about the same thing, over and over. Even journalists covering a specific area, such as sports or business, are nevertheless regularly greeted with new aspects of their respective coverage areas; the everyday business of tech comm, by contrast, has much less variety. While tech comm in the abstract deals with how to communicate to the laity about technology, in the actual workplace technical communicators usually write about the products made by the companies for which they work. Of course, other companies make these products, too – and within this insular world of a few companies that make the same things, there is an exponentially greater chance for technical communicators to make mistakes and inadvertently poach the text of other technical communicators writing about similar products. Thus, at least part of our jobs in this smaller universe is to make sure that we don’t trip over one another’s work, regardless of how pressing the deadline, or how cost-effective it might be to copy some text from there for use here. The potential costs, in terms of lawsuits, lost time, and possibly even lost careers, are simply too high.

Perhaps unfortunately, the field of tech comm has few, if any, well-known examples of what happens to those who don’t pay attention to copyright issues. Whether or not tech comm is, in fact, rife with copyright law-breakers would be an interesting subject for future discussion; however, while they may be out there, the larger tech comm community doesn’t know about them, and therefore we cannot learn from their examples in order to avoid future copyright problems ourselves. For instructive examples of what happens to copyright law-breakers, we must therefore look outside our field.

One of the most interesting areas in which to explore the perils of copyright violation is in the world of American hip-hop (a/k/a “rap”) music. Hip-hop, with spoken lyrics chanted over musical themes frequently sampled from earlier works of music, came into its own in the 1980s as an exciting new genre of musical expression. For the purposes of this paper, what is most interesting about hip-hop is not the uniqueness of its musical vision, but rather, its unique ability to awaken audiences to the concepts of intellectual property and copyright law. How hip-hop brought these issues to the fore, and the issues faced by both hip-hop artists and those whose works they sampled, is instructive for those of us who write for a living and who, therefore, must be concerned about such issues ourselves.

In this paper, I will explore two famous legal disputes that arose during the 1990s as a result of hip-hop sampling – disputes which, at their cores, were issues of copyright law. I will then explain the concept of “fair use,” and explore how the legal cases involving hip-hop dealt with it (or didn’t). Finally, I will explore the similarities between the copyright issues faced by hip-hop artists, and those faced by technical communicators.

Hip-Hop v. Copyright Law

In the context of hip-hop, “sampling” is the practice of taking a snippet of sound from a recorded piece of music (or other source) and using it in a composition of one’s own. While the use of samples initially involved turntables in which the sampled records were played and “scratched” to produce the sampled sound, in the early 1980s digital samplers and processors became the chief means of obtaining the samples used. The act of sampling involves using a digital sampler to record the desired sound, and then processing it as one sees fit and incorporating it into one’s own, ostensibly new song.

When music becomes so manipulable, one’s conception of it necessarily changes: while songs are still finished compositions, if you have a digital sampler, those songs are also compilations of information that can be utilized however you might desire. Thus, every listener becomes a potential user of sound as well. All of the bits are out there waiting for you; the only limit to what you might do with them is your own creativity. All of recorded music is transformed into a universe of digital bits, not just songs but also packets of information. Nicholas Negroponte likens the digital bit to an atom, noting that it “has no color, size, or weight, and it can travel at the speed of light. It is the smallest atomic element in the DNA of information. It is a state of being: on or off, true or false, up or down, in or out, black or white.” (14)

Negroponte’s description of how a digital recording sounds so clean to our ears can be aptly compared to how simple it becomes for anyone with a digital sampler and processor to record the sound - actually just a compilation of bits, now – and re-work it for their own purposes:

Digitizing a signal is to take samples of it, which, if closely spaced, can be used to play back a seemingly perfect replica. In an audio CD, for example, the sound has been sampled 44.1 thousand times a second. The audio waveform (sound pressure level measured as voltage) is recorded as discrete numbers (themselves turned into bits). Those bit strings, when played back 44.1 thousand times a second, provide a continuous-sounding rendition of the original music. The successive and discrete measures are so closely spaced in time that we cannot hear them as a staircase of separate sounds, but experience them as a continuous tone. (14)

The simplicity with which the sound could be recorded and then re-used was quite seductive, and hip-hop artists began to take full advantage of the digital sampler’s capabilities. Early hip-hop artists such as the Sugar Hill Gang broke new musical ground with their lyrics spoken over samples taken from funk and disco hits of the 1970s. Sugar Hill Gang’s “Rapper’s Delight” lifted its instrumental background from Chic’s “Good Times”. Often, however, they didn’t have permission to use the samples, which were, of course, taken from copyrighted works of music. This didn’t become an issue until hip-hop’s popularity began to soar in the late 1980s – at which point many artists whose works were being sampled began to feel ripped off.

In the early 1990s, lawsuits were filed by various artists in an attempt, depending on one’s opinion of the application of copyright law, to either cash in on the popularity of hip-hop or to seek redress against copyright thieves. Tired of watching others sample their songs and reap increasingly greater rewards, these artists began to seek either financial compensation or prevent would-be samplers from using their songs anymore. In Copyrights and Copywrongs, Said Vaidhyanathan describes the prevalent mood at the time that one such case was filed by the 1960s pop group the Turtles against the hip-hop group De La Soul:

Several sampling cases were settled out of court before December of 1991, postponing the inevitable guidance a judicial decision would bring. Nonetheless, the publicity surrounding these cases made older artists hungry to cash in on the potential sampling licensing market. A song that had ceased bringing in royalties decades ago could suddenly yield a big check. In 1991 Mark Volman and Howard Kaylan of the 1960s pop group the Turtles sued the rap trio De La Soul for using a twelve-second piece of the Turtles’ song “You Showed Me” in the 1989 rap track “Transmitting Live from Mars.” Volman and Kaylan sued for $2.5 million, but reached an out-of-court settlement for $1.7 million. De La Soul paid $141,666.67 per second to the Turtles for a sliver of a long-forgotten song. (141)

A side-by-side comparison of the two songs would reveal that the twelve sampled seconds of the Turtles’ 1969 hit “You Showed Me,” as they appears in De La Soul’s “Transmitting Live from Mars,” bear no resemblance whatever to their original form. What was sampled was not the melody, nor any of the lyrics; rather, De La Soul used those twelve seconds to create a song that constituted little more than one minute of “filler” material – specifically, an instructional French language tape played over the looped string section sample – on their 1989 album Three Feet High and Rising. Nevertheless, the message to those hoping to sample the Turtles, at least, was that you had better be prepared to buy permission or suffer the legal consequences, and in either case to pay up.

Another case from 1991 had a more profound, and more direct, effect on hip-hop’s evolution. In July of that year, the rapper Biz Markie released an album entitled I Need a Haircut. The second to last song on the album, “Alone Again,” utilized a sample from the song “Alone Again (Naturally),” which was a hit for Gilbert O’Sullivan in 1972. Although Markie “used only about twenty seconds of piano chords from the original song, which he looped continuously to construct the musical background of the song” (141), O’Sullivan still felt that his copyrights were being violated, and he filed a lawsuit against Markie.

Markie’s attorneys could have argued for his use of O’Sullivan’s song under a “fair use” claim, saying that the new song constituted a transformation of the earlier work, and that “Alone Again” didn’t compete with “Alone Again (Naturally)” for the same market. Instead, however, Markie’s attorneys chose two fairly weak arguments: 1) O’Sullivan was not the actual copyright holder; and, 2) everyone else in hip-hop is already sampling – why not Biz Markie? Neither was persuasive to U.S. District judge Kevin Thomas Duffy. In his decision against Markie, Duffy basically declared that sampling was theft:

O’Sullivan requested an injunction against further sale of the song and album. (Duffy) gladly granted O’Sullivan his wish . . . Duffy’s ruling did not articulate any nuanced standard by which a song could be sampled, manipulated, or revised without permission. It left no “wiggle room” for fair use. It did not consider whether the new use affected the market of the original song in any way. It did not try to clarify how long a sample must be to qualify as an infringement. . . . Duffy’s brevity clarified these issues by ignoring them: “how much?” and “for what purpose?” need not even be asked after (his) ruling. It was safe to assume that any sample of any duration used for any purpose must be cleared. (142-3)

Although hip-hop certainly did not die after the 1991 ruling, it did drastically change. Vaidhyanathan notes that “(r)ap music since 1991 has been marked by a severe decrease in the amount of sampling. Many groups record background music and then filter it during production so it sounds (sampled). Other groups – the well established – pay for and extensively credit all the sources of their samples. . . . The Biz Markie case ‘stole the soul’ from rap music” (143-4).

Copyright Law v. Ignorance

In order to know when one is entering into territory covered by copyright law, it is necessary to first have an understanding of the four factors that comprise the concept of “fair use.” Basically, if the manner in which you are using a source does not fit all of these four factors, then you are probably in violation of copyright law. What follows is an exploration of what copyrightable work is; what are the four factors of fair use; and how hip-hop artists (or, rather, the judges who decided against them) may have run afoul of fair use.

In the essay “Ownership Issues in Copyright Law,” law professor Michael Landau succinctly defines the rights of the person who owns copyright to a copyrighted work, and sets the tone for what the potential user of that work might encounter when trying to determine the legality of his or her usage:

When a copyright work is conceived and created by a lone author, artist, composer or programmer, with his or her own funds and equipment, the determination of initial ownership is easy. The creator is by law the “author,” and as such, enjoys the benefits of ownership – the right to license or assign the work, the rights to distribute, reproduce, transmit, adapt or change, and perform the work, and the right to sue unauthorized users for infringement. (1)

Of course, the defense most often used by those who run afoul of copyright law is “fair use.” The concept of fair use has been around for centuries, but it was not explained in law until passage of the Copyright Act of 1976. It is thought to be tricky territory, even for attorneys. Fair use is perhaps best defined by looking at what it is not, rather than what it is. The four factors that courts use when trying to determine whether fair use has occurred are as follows:

purpose and character of use;

nature of the copyrighted work;

amount and substantiality of the portion used; and,

the effect of the use upon the market (Gall 2).

Purpose and Character of the Use.

If the manner in which the work is being used is educational or commercial in nature, then using it without first getting the approval of the owner of copyright is probably unfair use, and therefore illegal. Copying a work for use in the classroom, which is, of course, an educational purpose, is illegal unless first getting approval. So, therefore, it would seem that the temptation that might potentially befall a technical communicator – to use a piece of text that explains a product that does the same thing that yours does – is probably both education and commercial.

Another criteria of this aspect of fair use is whether use of the copyrighted work is “transformative,” i.e., “Has there been, in the words of the Sixth Circuit Court of Appeals, a ‘creative metamorphosis’” of the original work after it has been transposed to the new one? If the answer is no, then it’s probably not fair use (2).

Nature of the Copyrighted Work.

According to U.S. copyright law, the vast majority of literary, musical, and artistic production can be copyrighted. An article published by the U.S. Copyright Office entitled “The Basics of U.S. Copyright Law” lists the following categories of copyrightable works: “literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; (and,) architectural works” (3). The article goes on to advise that “(t)hese categories should be viewed broadly. For example, computer programs and most ‘compilations’ may be registered as ‘literary works;’ maps and architectural plans may be registered as ‘pictorial, graphic and sculptural works’” (3).

The list of what can be copyrighted is not quite as comprehensive as it appears, however. Generally speaking, what can be copyrighted are works that have been expressed in some kind of recorded form such as written articles, or recordings, or paintings, or buildings. While this covers a great deal, it omits a great deal as well. A truncated list of what cannot be copyrighted includes works that are not in a tangible form of expression, i.e., dances or speeches that have been neither written nor recorded; titles, names, listings of ingredients or contents (i.e., recipes); ideas, procedures and devices (though not descriptions of same); and, “works consisting entirely of information that is common property” (3) such as calendars, height and weight charts, and tape measures. Also, any works printed by the federal government cannot be copyrighted.

Amount Used.

Gall notes that what is required here is that the user (or, in the context of a lawsuit, the court) “assess the amount used in relation to the copyrighted work as a whole” (Gall 3).

The Copyright Act of 1976 decreed that for printed works, no more than 1,000 words of any work could be copied without asking for permission from the copyright owner. No such specific limit has ever been defined for hip-hop; and, as we shall see, the results were disastrous.

Impact on the Market.

The question that needs to be asked when considering this aspect of fair use is “If I borrow from this work, what impact, if any, will my subsequent work have on the market for original work?” As Gall expresses it:

Why make the copy? If it is to keep from having to buy reprints of an entire (work), that is not fair use. If the copied portions “fulfill demand for the original,” it is not fair use. “Fairness,” however, may depend on whether there was a market for the work that was taken. (3)

Generally, if one’s use of the original work, or a portion of that work, can be construed as taking potential profits from the owner of copyright on the original work, then the use would be considered unfair and in violation of copyright law.

Fair Use and Hip-Hop.

So far, courts have not taken the opportunity to determine a fair use standard for sampling in hip-hop music. Judge Duffy’s 1991 ruling in the Markie matter effectively equated sampling with theft; what this has meant in practice is that unauthorized use of samples no longer occurs. As a result, discussion about what constitutes unauthorized fair use of music samples is purely theoretical, as such use can no longer occur. But an examination of how a hip-hop artist might argue the four factors of fair use (purpose and character of the use; nature of the copyrighted work; amount used; and, impact on the market) is still viable, if only to speculate about what might have been – or might be again, if Judge Duffy’s ruling is ever overturned.

Regarding the first factor, it would seem entirely plausible for many if not most hip-hop artists to argue that the incorporation of a sampled work into a new piece of music is entirely transformative. In most cases, what is sampled from the original song is a snippet of the melody, or a drum sound, or a phrase or two; the end result, however, frequently bears little resemblance to the original in concept, theme, form or anything else. Unfortunately, no hip-hop artist has ever argued this in court; or, if they have, no judgment has ever been entered into law that might contravene Judge Duffy’s 1991 ruling.

In the context of a legal decision, not considering the nature of the copyright work might be a possible, thought very weak, defense for copyright law-breakers. They could argue that the work in question was not deserving of the copyright protection accorded to it. However, the probability that anyone in the hip-hop field would ever have the opportunity to legitimately use this defense is very slim.

As for amount used: how much is fair use, and how much is too much? As we have seen in the context of hip-hop, the only legal ruling to have a major impact has outlined that virtually any unauthorized borrowing of copyrighted work is enough to cross the line separating fair use from copyright infringement. It’s difficult to say that legal rulings in the field of music offer any guidelines for technical communicators; however, the fact that the musicians who infringed upon copyright law without first gaining permission were, variously, either fined (in the case of De La Soul) or censored (in the case of Biz Markie, whose offending song was removed from subsequent copies of his album), coupled with the fact that Judge Duffy’s decision literally changed the focus of hip-hop music, should give pause to anyone considering taking a chance.

Finally, there is the matter of the new composition’s impact on the market. In the context of popular music, it seems absurd to think that the market for records by De La Soul or Biz Markie is the same as that for the Turtles or Gilbert O’Sullivan. However, in the two extant cases, the holders of copyright were able to persuade the judges that they were being financially damaged by the unauthorized use of portions of their songs, thus implying that both new and old compositions were vying for the same buyer. And in rulings that precluded any future notion of the “fair use” of sampling, judges appeared to have neglected, or ignored, the success of the 1970s rock band Aerosmith after a sample of their 1973 hit “Walk this Way” featured very prominently (and with Aerosmith’s permission) in a Run DMC song in 1986, thus actually benefiting rather than harming the copyright holder.

Again, it is unfortunate that what few rulings there have been regarding sampling have so completely missed the mark of what sampling, and hip-hop, are actually about. However, the decisions have been made – and their disastrous effect on the musicians who broke copyright law, and on hip-hop in general, should serve as a warning to those of us in tech comm who might want to try and “bend” the law here and there.

Technical Communicators v. Copyright Law

For those who aren’t aware of the pitfalls of copyright law, the above examples from hip-hop provide a cautionary tale more compelling than anything in the field of tech comm. They should serve as a warning to anyone working in fields where issues of copyright infringement may arise, reminding them they had better tread carefully – or ignore the law at their peril. Regardless of how small the benefit might be to oneself, whether in the form of a met deadline or a little money saved, benefiting from the previously published work of another is not a small matter to those who feel they are being ripped off. In his discussion of the De La Soul matter, Vaidhyanathan notes that “Mark Volman of the Turtles said, ‘Sampling is just a longer term for theft. Anybody who can honestly say sampling is some sort of creativity has never done anything creative’” (143). Clearly, whether you are the copyright holder or the individual seeking use of a copyrighted work, the issue of copyright infringement can be emotional, and potentially costly.

The sort of copyright infringement technical communicators must deal with involves sampling not of sound, but of text or code or software. When faced with a tight deadline and a wealth of writing out there that’s based on products that are similar to what one is writing about, or code or software that, if tweaked properly, will do the job one is facing, the temptation might be to simply lift what’s needed and make an only minimal attribution to the original author, thinking that by clearly stating one’s sources everything has been taken care of. But that’s simply not so. In his article “Are You a Copyright Criminal?”, writer Dave Zielinski reports that

. . . With (violations) occurring almost daily in corporate America, and with an increase in piracy on the World Wide Web, licensing organizations, performing-rights societies and other copyright cops have stepped up activity to enforce their rights. The Training Media Association . . . offers a $10,000 bounty for reporting illegal copying or unauthorized “public performance” of (its) off-the-shelf training videos. A temporary-employment agency recently paid a six-figure out-of-court fee after one of its employees reported it to the TMA for making illegal copies of four videos (the agency had no license to do so) and sending the copies out for use in its 50 offices. (2)

Zielinski notes that most copyright law-breakers do so not out of malice, but out of ignorance or confusion about copyright laws combined with a desire to save time and money. He cites the example of a former employee of a telecommunications company who “ . . . saw plenty of . . . violations, such as flagrant photocopying of manuals and books for mass distribution. In six years, [the employee said], ‘Not once did I hear the word copyright spoken’” (1).

If you break the rules regarding copyright protection, there can be serious financial penalties. Whether it’s training presentations or technical documentation, the financial penalties allowed by law are the same: “Statutory damages for infringing on copyright can hit $20,000 per violation, and they can go as high as $100,000 in some circumstances of willful violation – and that’s above and beyond the fine for actual damages” (2).

Fair Use and Tech Comm.

The best way to avoid incurring any financial penalties or potentially losing one’s job is to basically do what Judge Duffy refused to do in the Biz Markie case: examine the four factors of fair use (purpose and character of the use; nature of the copyright work; amount used; impact on the market), and confirm that the manner in which you are considering using something meets all four the criteria. Is your use of the original text simply parroting that which is in the source, or is it somehow qualitatively “transformative”? Is the work genuinely copyrightable (again, the chances of this actually being an issue are virtually nil)? Is the amount used within the limits proscribed by the Copyright Act of 1976? And finally, would your work take the place of the work from which are your are considering borrowing?

Another path one might take would be to simply avoid confusion about fair use altogether and ask for permission to use a copyrighted work. When doing so, we need to keep in mind several important tips when doing the requesting:

Make sure you’re getting permission from the proper party, and from all of the relevant parties

Make sure you get all of the rights you need

Make sure you get adequate legal protection (Isenberg 1-2)

Conclusion

It’s safe to say that unless one either works at the Copyright Clearance Center or is a copyright attorney – or, possibly, a student of hip-hop – the world of copyright law is very complex. Those of us in the field of tech comm write something everyday – words or code or both. In order to avoid both huge financial penalties and possibly ruined careers, we would do well to pay heed to the copyright travails of our predecessors, whatever their fields.